INTRODUCTION TO APPLICABLE EHP LAWS AND EXECUTIVE ORDERS

1. INTRODUCTION TO APPLICABLE EHP LAWS AND EXECUTIVE ORDERS

2. Laws and Executive Orders: The basis for FEMA’s EHP Review Endangered Species Act ExecutiveOrders: Environmental Justice National Historic Floodplains Preservation Act Wetlands NEPA Clean Air Act Coastal Barrier Clean Water Act Resources Act Resource Conservation & Coastal Zone Recovery Act Management Act

3. National Environmental Policy Act (NEPA)

4. NEPA Principles • Applies to actions that have the potential to impact the human environment (natural and built) • Gives the environment an equal footing with economic and engineering considerations • Requires that the public be informed and has the opportunity to comment • Directs decision-makers to be informed of impacts prior to deciding to fund a project

5. When Does NEPA Apply? • Federal Funding • Federal Permits • Federal Facilities, Land & Equipment • Federal Agency Rulemaking

6. NEPA is a Decision-Making Process Share information Proposed action with Agencies and public Seek Agency and public input Consider NEPA PROCESS alternatives No requirement to avoid all Analysis environmental or evaluation impacts Consider environmental consequences DECISION DECISION

7. FEMA’s Environmental Regulations • 44 CFR §10 provides the framework for FEMA’s compliance with NEPA • Outlines responsibilities • Establishes how to determine the level of NEPA review needed • Describes planning procedures • Provides guidance for the preparation of NEPA documents • Describes pre-implementation procedures

8. Levels of NEPA Review & Documentation • Categorical Exclusion (CE or CATEX) • Environmental Assessment & Finding of No Significant Impact (EA/FONSI) • Environmental Impact Statement & Record of Decision (EIS/ROD)

9. Categorical Exclusion (CATEX or CE) A category of actions which, based on the agency’s past experience, do not individually or cumulatively have a significant effect on the human environment See 44 CFR §10.8 for list of FEMA’s CEs • Classroom-based training • Administrative actions • Preparation & distribution of documents • Certain kinds of activities at existing facilities Even if an action is categorically excluded from further NEPA review, all other EHP laws/EOs and permitting requirements still apply

10. Extraordinary Circumstances Refers to something about the nature or location of the proposed action that makes it substantially different from a typical action of its category. • Greater scope • Public controversy • Degradation of environmental conditions • Unproven technology • Presence of TES or HP • Hazardous/toxic substances • Special status areas • Health and safety • Legal violation • Cumulative impact

11. Environmental Assessment (EA) • Concise public document • Analyzes and discloses potential impacts to resources and population in the project vicinity • Integrates compliance with other EHP laws/EOs • Typically put forth for 30-day public comment • May set forth required project conditions or mitigation/treatment measures • Outcomes: • Finding of No Significant Impact (FONSI) • Notice of Intent to prepare EIS (NOI)

12. Environmental Impact Statement (EIS) Similar to an EA in format, but requires: • More rigorous data collection and analysis • More formal public involvement • Fixed schedule for public review and comment • Does not prevent actions having significant impacts from being implemented • Takes at least a year and usually costs more that $250,000

13. CATEX with no extraordinary circumstances? NEPA Review Process Yes NEPA complete No FONSI EA is required EA results in NOI. EIS required Record of Decision

14. National Historic Preservation Act (NHPA)

15. National Historic Preservation Act Requires Federal agencies to consider effects of its actions on historic properties

16. Historic Properties • Are buildings, sites, structures, objects, districts • Are at least 50 years old (with exceptions) • Are significant within their historic context • Retain integrity or convey their significance • Listed on or eligible for listing on the National Register of Historic Places

17. National Register of Historic Places • “Official list” of properties important in U.S. history and culture • Significant at local, state, regional and/or national level • Administered by National Park Service • Contains over 80,000 listings • http://www.nps.gov/nr/

18. National Historic Landmarks • Over 2,400 properties • Possess exceptional value or quality in illustrating and interpreting the heritage of the United States • Significant at national level • http://www.nps.gov/history/nhl/ .

19. NHPA Consultation • Required under Section 106 of NHPA • It is FEMA’s responsibility to consult • State Historic Preservation Office/Tribal Historic Preservation Office • Advisory Council on Historic Preservation • Cannot be delegated to grantee • Grantees must comply with any conditions placed on project as a result of SHPO/THPO consultation

20. State/Tribal Historic Preservation Officer • Maintains inventory of historic properties in the state or on tribal lands • FEMA’s primary contact for Section 106 consultation • Grantees are encouraged to contact SHPO/THPO to obtain information about the presence of historic properties in project vicinity (http://www.ncshpo.org/stateinfolist/fulllist.htm)

21. Advisory Council on Historic Preservation • Independent federal agency • Mission is to promote the preservation, enhancement, and productive use of our nation's historic resources • Advises the President and Congress on national historic preservation policy

22. Information for the NHPA Review • Age of buildings/structures directly affected • Method & location of equipment installation • Age of surrounding buildings/structures • Site and structure photographs (color, labeled, good quality) • USGS topographic quadrangle map (1:24,000 scale) • Will there be ground disturbance? • Previously disturbed or undisturbed ground?

23. Biological Related Laws

24. The Endangered Species Act (ESA)

25. ESA Requirements • FEMA must consider effects of its actions on threatened/endangered species • FEMA cannot fund any action that would • jeopardize the continued existence of any endangered or threatened species • result in the adverse modification of habitat of such species

26. ESA “Taking” • Unlawful to “take” any endangered species • Applies to everyone, regardless of whether Federal funds are involved • Violation of the ESA can result in individual civil and criminal penalties, including fines and jail time

27. ESA Consultation • Required under Section 7 of ESA • FEMA consults with US Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) • Consultation determines: • Species or habitat affected • What action is required to avoid or mitigate impacts to TES • Grantees must meet any conditions placed on project as a result of FWS/NMFS consultation

28. Helpful Information for the ESA Review • Grantees are encouraged to gather information from a regional FWS office or an appropriate state entity (e.g. Department of Natural Resources) • Description of project location • Urban/developed • Industrial • Wilderness/forested • Agricultural, etc.

29. Helpful Information for the ESA Review • TES lists are often available on the FWS or state DNR websites (http://www.fws.gov/endangered/) • Site photographs help to provide context and enhance habitat descriptions

30. Migratory Bird Treaty Act

31. MBTA Purpose • To protect migratory birds, their nests, eggs, and feathers

32. MBTA Compliance • FEMA consults with FWS • For communication towers • consider FWS guidance on tower location, design, construction and operation http://www.fws.gov/migratorybirds/issues/towers/comtow.html

33. Helpful information for the MBTA Review (tower projects) • Height of tower • Guy wires vs. lattice design • Will aviation lighting be used? If so, describe.

34. Water Related Laws and Executive Orders

35. Executive Orders (EOs) • Floodplain Management (11988) • Wetland Protection (11990) • FEMA’s regulations for Floodplain Management & Protection of Wetlands are found in 44 CFR § 9

36. Floodplain Management • Maintain natural and beneficial floodplain values • Avoid, to extent possible, actions within or affecting the floodplain • If there is a reasonable alternative outside the floodplain, FEMA cannot fund the project within the floodplain • 100-year floodplain • 500-year floodplain for actions involving critical facilities • FEMA uses Flood Insurance Rate Maps (FIRMs) to identify the regulatory 100-year and 500-year floodplains

37. Protection of Wetlands • Avoid, to extent possible, adverse impacts to wetlands • The U.S. Army Corps of Engineers (USACE) regulates the discharge of dredged or fill material into waters of the U.S., including wetlands, pursuant to Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act • If there is a reasonable alternative outside the wetland, FEMA cannot fund the project within the wetland

38. What Is A Wetland?

39. Wetlands “In the simplest sense wetlands are just places where land and water mingle in novel and intricate ways to create a remarkable diverse assortment of habitat types. Water is the dominant influence in soil structure and the kinds of plants and animals characterizing a wetlands.” Excerpt from: The Wetlands Resource, United States Environmental Protection Agency, Office of Water, Office of Wetlands Protection, 2-9/89

40. Key Identifiers of Wetlands • Vegetation • Soils • Hydrology

41. 8 8 Comply with Executive Orders 7 7 Provide Public Explanation 6 6 Determine Practicality 5 5 Minimize Impacts 4 4 Assess Impacts 3 3 Evaluate Alternatives 2 2 Encourage Public Involvement 1 1 Project Location in Floodplain/Wetland Eight-Step Planning Process for Floodplain/Wetland Management

42. Helpful information for the Floodplain review • Provide flood zone information • Provide copy of FIRM covering project area http://www.fema.gov/business/nfip/mscjumppage.shtm

43. Helpful information for the Wetlands Review • Provide National Wetlands Inventory Map of project area http://www.fws.gov/nwi/ • Provide site photographs

44. Clean Water Act

45. Goals of the CWA • Meet pollution control standards • States set water quality criteria • States receive money to reduce water pollution • Protection of wetlands and aquatic habitat

46. Waters of the United States • Rivers and streams • Lakes and ponds • Coastlines • Wetlands • Estuaries

47. Clean Water Act Permits • Permits regulate the discharge of dredged or fill materials • Nationwide Permit • Section 404 Permit • Section 10 Permit (Rivers and Harbors Act) • National Pollutant Discharge Elimination System (NPDES)

48. CWA/RHA Compliance • Grantee is responsible for obtaining applicable permit(s) from USACE and state Department of Environmental Quality

49. Pollution Management Related Laws

50. Resource Conservation and Recovery Act (RCRA)& Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) • When do RCRA & CERCLA apply? • Construction and demolition activities • Operation and maintenance activities involving the use, storage, and disposal of hazardous materials • Above-ground and underground storage tanks • Improper handling, storage, and disposal of hazardous materials • An uncontrolled or abandoned site where hazardous waste is located